Why did the post-Watergate reforms fail to prevent so many lawyers from undermining democratic government and rule of law? We can recognize today that rules for lawyers are not the full solution. The problem is cultural and pervasive. Lawyers play a role in the culture in which President Donald Trump has always operated and today epitomizes. The goal too often is that of what Oliver Wendell Holmes described as the bad man who believes that legal and community obligations are measured by what he can get away with. In the legal profession, the equivalent is the extreme partisan who has no accountability for her conduct. When lawyers act as “bad men and women,” they teach each other, their clients and civil society that they have no responsibilities to the public good and our democratic institutions.
So what can we do today to train professionally responsible lawyers who can assume their proper ethical role?
First, build on the strengths of the legal profession. We should recognize and applaud those lawyers who have offered a contrasting example, such as the public interest lawyers and private lawyers serving pro bono who flocked to airports to challenge the travel ban and to the southern border to protect families.
Second, educate for leadership. Although we have done a good job of teaching lawyers to be loyal to their clients, we have not done so well at educating them to serve as societal leaders. Law schools should educate for leadership and bar associations should promote it. The goal is not to focus on developing individual heroes, but strong community members who lead by modeling integrity and commitment to democratic values and the rule of law.
Third, teaching legal ethics must go beyond the rules. It must include the basic values of democracy and accountability for the rule of law. It must focus on lawyers’ roles as wise counselors who advise clients on their long-term interests in upholding the integrity of our institutions and our social fabric, rather than focusing solely on what they can get away with in the short term. The corporate or governmental client who neglects these values undermines the predicates for its own success. The lawyer as a wise counselor is very much consistent with serving as a zealous advocate.